State v Aisea - Sentence [2022] FJHC 147; HAC346.2020 (28 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 346 of 2020

STATE

.vs.

THERESA GERMAINE AISEA

Counsels: Ms. Tivao S - for Prosecution

Ms. Kean T - for Accused

Date of Hearing: 22.03.22

Date of Sentence: 28.03.22

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SENTENCE

1. THERESA GERMAINE AISEA, you were charged on the fonlowing information with one count to Act with Intent to Cause Grievous Harm contrary to Section 255 (a) of the Crimes Act of 2009, as below:

COUNT ONE

Statement of Offence

ACT WITH I TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Act 2009.

Particulars of Offence

THERESA GER AISEA, on the 5th day of November 2020 at Lami, in the Central Division, intended to cause grievous harm to PRASHANT PRASAD by stabbing him with a knife.

2. You pleaded guilty on your own free will to the above mentioned count when you were represented by a legal counsel. You understood the consequences of the guilty plea for the offence you were charged with. This Court was satisfied that the guilty plea is informed and unequivocal and entered freely and voluntarily by you.
   
3. You agreed to the following summary of facts, when they were read to you in Court on 22/03/2022. This Court was convinced that the facts agreed satisfy all the elements of the offence you were charged with. You were found guilty and convicted on the one count, as charged.
   
4. Summary of Facts
   
   • The Accused: Theresa Germaine Aisea Prasad, 37 years old, Domestic Duties of Wailekutu.
     
   • The Victim (Complainant): Prashant Prasad, 47 years old, senior mechanic of Wailekutu.
     
   • Theresa Germaine Aisea and Prashant Prasad are married. They have 3 children together Irwine Prasad, Tasha Prasad and Alisha Prasad. On the 5^th November, 2020 Theresa Germaine Aisea, Prashant Prasad and their 3 children lived together at Wailekutu Settlement, Lami.
     

The incident

• On the 5^th November 2020 at around 5.20am in the morning, the complainant woke-up to the accused calling his daughter Tasha. As he opened his eyes, he noticed the accused holding a knife in her right hand and her daughter Tasha in her left hand. The complainant then pushed the accused away and held his daughter.
• Thereafter, the accused struck the complainant on his chest with a knife causing the complainant to sustain grievous harm. At the time of the incident, the accused intended to cause grievous harm to the complainant.
• The complainant shouted for help, where his sister Francis Devi and his nephew Avishil Ram came to help.
• After stabbing the complainant, the accused proceeded to stab herself in her abdomen, Avishil Ram noticed the accused trying to stab herself again and he grabbed the kitchen knife off her and held her from the back and started to shake her.
  

Investigation

• The victim was taken to hospital where he was medically examined. Dr. Naitini noted at D12 of the Fiji Police Medical Form, that there was a 5cm x 2cm laceration on the right chest wall, subcutaneous emphysema noted on the interior right chest wall.
• The accused was also rushed to hospital for her self-inflicted stab wounds, and was seen by Dr. Ratu Tunisau.
• The accused was arrested and cautioned interviewed on 30^th November 2020.
  

5. In comprehending the gravity of the offence you have committed, I am mindful that the maximum sentence prescribed by law for Acting with the Intent to Cause Grievous Harm is imprisonment for life.
   
6. In assessing the objective seriousness of your offending in this matter, I considered the maximum sentence prescribed for the offence, the degree of culpability and the harm caused to the complainant. I gave due cognizance to the sentencing guidelines stipulated in Section 4 of the Sentencing and Penalties Decree 2009. It was revealed in the summary of facts that the incident you’re charged with was committed in the early hours in the morning, at a much unsuspected moment. When the victim woke up on hearing you calling your daughter’s name, you attacked him with a knife without any provocation at that time. As a consequence of your assault, the victim sustained one stab wound on his chest. This is a case of violence caused due to domestic misunderstandings and the pressure created by domestic responsibilities, where the victim is your husband and the father of your 3 children to whom you were married for 16 years. Be informed, your disliking to the abhorrent deeds of your family members cannot be compensated or answered by causing grievous harm to that person against the established law of our country. However, this Courts has a responsibility to discourage and deter behavior of anybody that causes physical harm to other members in our community.
   

7. In identifying a suitable sentencing tariff for the offence of Act with Intent to Causevous Harm, trm, this Court refers to the case of State v Mokubu60; [2003] FJHC 164; H64; HAA0052J.2003S (23 December 2003), where analysing the tariff pronounced in several cases referring to the then Penal Code Section thatimilar to the now Crimes Act Section dealing with Act with&with Intent to Cause Grievous Harm,, Justice Shameem stated as below:

“On the basis of these authorities, the tariff for sentences under section 224 of the&#/i>Penal Code, is between 6 months imprisonment to 5 years imprisonment. In a case of an attack by a weapon, the starting point should range from 2 years imprisonment to 5 years, depending on the nature of the weapon. Aggravating factors would be:

1. Seriousness of the injuries;
2. Evidence of premeditation or planning;
3. Length and nature of the attack;
4. Special vulnerability of the victim;

Mitigating factors would be:

1. Previous good character;
2. Guilty plea;
3. Provocation by the victim;
4. Apology, reparation or compensation”
   
8. As a consequence, I start the sentence in this matter with a starting point of 30 months imprisonment, i.e. in the mid-range of the applicable tariff.
   
9. As aggravating factors in this matter, it is evident from the summary of facts that you have pre-planned this attack, where you have identified an unsuspecting moment when the victim was asleep at home and attacked him with a knife without any instant incident of sudden provocation. In view of this aggravating factor, I increase your sentence by 06 months to reach thirty six (36) months of interim imprisonment.
   
10. In mitigation, the defense counsel has informed Court that you are a first offender and that you have maintained a good character before the involvement in this offence. Further it has been brought to the attention of Court that you have been the career for your 3 children of tender years. Still further, your counsel has informed the Court that you have entered an early guilty plea and that you regret your action on the day in question. You have also been supportive to the police during investigations after your arrest. By pleading guilty to the charge you have saved court time and resources at a very early stage of the court proceedings. For all these grounds in mitigation, you should receive a considerable discount in the sentence. In this regard, I give you a reduction of one third in your sentence.
    
11. Your counsel has brought to the attention of this court that you have been in custody for 107 days, since your arrest, which period should be deducted from your sentence separately. Mrs. THERESA GERMAINE AISEA, I sentence you to 20 months and 18 days imprisonment.
    

12. This Court gave due credence to the decision of the Fiji Supreme Court in the case of Regina v Ali [1976] FJLawRp 16; [1976] 22 FLR 87 (23 July 1976), where Justice Williams has stated , as below:
“A man should not escape immediate imprisonment by saying that he was provoked into carrying out the attack through rumours that the victim had violated his sister. It was a mere act of revenge which did not warrant a suspended sentence.”

13. The above case refers to an incident that took place among employees in the sugarcane industry, which cannot have any factual reference to the matter at hand. From the evidence led in the sentence hearing in this matter, it was evident that the 3 young children of the accused are waiting for the day their mother comes home to receive the affection of the mother. Further, the victim, the father of the children, has impressed this Court that he has forgiven the accused and that he needs the accused at home to care for the children. In this regard, this Court takes guidance from Section 41 (1) (C) of the Constitution of Fiji of 2013, where the importance of providing family care, protection and guidance to children by the parents is highlighted.

14. In this light, with the authority given to this Court by Section 26 of the Sentencing and Penalties Act of 2009, in considering the evidence given by the victim and your Sister-in-Law that demonstrated your proactive involvement with your 3 children as a concerned and a caring mother who’s contribution is a compulsory requirement (sine qua non) in guiding them into their future and the mention that you have ventured to take counselling to address your mental stress, your sentence is suspended for five (05) years.
    
15. If you commit any crime punishable by imprisonment during the above operational period of five (05) years and found guilty by the Court, you are liable to be charged and prosecuted for an offence according to Section 28 of the Sentencing and Penalties Act of 2009.

16. Further, this Court is aware that this incident involves domestic violence and the prosecution has recommended a Domestic Violence Restraining Order against the accused. However, giving due credence to the evidence given by the victim at the sentence hearing and in view of the fact that the accused and the victim are a married couple with no reported family violence incidents prior to the incident in issue and they are expecting to live together with their children in the same house, acting under Section 24 (3) of the Domestic Violence Act of 2009, this Court does not intend to impose a Domestic Violence Restraining Order against the accused.
    
17. You have thirty (30) days to appeal to the Fiji Court of Appeal.
    

.............................................
Hon. Justice Dr. Thushara Kumarage




At Suva

28 March 2022